Federal Court of Australia

Tukala v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCA 241

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 486F(1) of the Migration Act 1958 (Cth), Vangu Kitoko pay the first respondent’s costs of the proceeding, including the costs of the interlocutory application filed by the first respondent on 23 February 2023.

2.    Pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth), those costs be awarded in a lump sum, fixed in the amount of $17,853.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KATZMANN J:

Background

1    On 3 September 2020 the Administrative Appeals Tribunal (AAT) dismissed an application made by Jean-Pierre Tukala Tukala for review of a decision made by a delegate of the Minister to refuse to grant an Extended Eligibility (Temporary) (Class TK) (Subclass 445) visa to his son, Joshua. Mr Tukala claimed to be applying for review in his capacity as “the sponsor or nominator” of the visa applicant (Joshua). The relevant legislation provided that an application for review could only be made by the sponsor or nominator of the visa holding parent of the visa applicant and that person was Veronique Vela, Joshua’s mother and Mr Tukala’s wife. Consequently, the AAT decided that it had no jurisdiction to conduct the review. Mr Tukala and Ms Vela (the applicants) applied to the court below for judicial review.

2    In each of these applications the applicants were assisted by Vangu Kitoko, who is not a lawyer and, as far as I am aware, not a migration agent either.

3    The primary judge dismissed the application and ordered Mr Kitoko to pay the Minister’s costs of the proceeding under s 486F of the Migration Act 1958 (Cth) (Migration Act). The applicants applied to this Court for an extension of time to appeal (the applicants’ application), relying again on the assistance of Mr Kitoko. Sometime later, Mr Kitoko applied for an extension of time to appeal from the s 486F order (the Kitoko application).

4    I dismissed the applicants’ application, reserved the question of costs, and fixed a timetable for the determination on the papers of an application the Minister had foreshadowed for an order under s 486F in respect of the proceeding before this Court: Tukala v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 74. From now on I will refer to that judgment as the principal judgment.

5    The same day, I delivered a separate judgment in which I refused the Kitoko application: Tukala v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Costs) [2023] FCA 75. Although it is not entirely accurate, for convenience I will refer to this judgment as the costs appeal judgment.

6    This judgment should be read together with the principal judgment and the costs appeal judgment.

The present application

7    The orders I made on 9 February 2023 required the Minister to file and serve any application for an order under s 486F, supporting affidavit and submissions by 4 pm on 23 February 2023 and Mr Kitoko to file and serve any affidavit and submissions in response by 4 pm on 9 March 2023.

8    On 23 February 2023, the Minister filed an interlocutory application in which he sought an order under s 486F of the Migration Act that Mr Kitoko pay the costs of the proceeding before this Court in a lump sum. In the alternative he applied for an order that the applicants pay those costs (excluding the costs of the interlocutory application).

9    Mr Kitoko did not file any affidavit in response or make any submissions.

10    For the reasons that follow I consider that the orders the Minister sought should be made.

The legislative framework

11    I set out the legislative framework which governs the making of orders under s 486F and discussed the historical context of the provision at paras [16]–[24] of the costs appeal judgment. I adopt what I said there for present purposes.

12    The relevant provisions are set out in full at [17]–[18] of the costs appeal judgment. In brief, s 486E provides that a person must not encourage a litigant to commence or continue migration litigation in a court if, relevantly, the litigation has no reasonable prospects of success and the person does not give proper consideration to the prospects of success. For this purpose, the litigation need not be hopeless or bound to fail. The prohibition applies despite any obligation the person may have to act in accordance with the instructions or wishes of the litigant. Section 486F relevantly provides that, if a person acts in contravention of s 486E, the court in which the migration litigation is commenced or continued may make orders, including an order that the person pay the costs incurred by any party other than the litigant, because of the commencement or continuation of the migration litigation.

13    As I indicated at [21] of the costs appeal judgment, the purpose of Part 8B of the Migration Act, in which these provisions appear, was twofold: first, to deter the initiation or continuation of proceedings that are an abuse of a court’s process and which waste court resources, and second, to protect litigants so that they are not encouraged to pursue unmeritorious litigation: Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) at [54].

Mr Kitoko’s involvement in this proceeding

14    Mr Kitoko’s involvement in the proceedings before this Court was extensive. For a start, the footers of the application for an extension of time, the draft notice of appeal, and the applicants’ written submissions filed in this Court indicate that they were all prepared by Mr Kitoko. At the hearing he admitted as much, saying that he had done “all of the work from 2016 to now” and that he was the reason “all of the paperwork [was] before the Court”.

15    In his affidavit sworn on 3 August 2022 in support of the applicants’ application, Mr Kitoko described himself as “assisting the Applicants for the day-to-day conduct of the court's matter brought by the Applicants”.

16    Mr Kitoko’s involvement in this proceeding did not stop at assisting the applicants with preparing court documents. Mr Kitoko sought leave to appear for the applicants. The applicants indicated that they wished him to do so, since they did not possess any knowledge of migration law and had insufficient funds to obtain representation.

17    I refused to grant Mr Kitoko leave to appear for the applicants as his interests and those of the applicants were potentially in conflict. That was because, if I had dismissed their application but set aside the costs order made against him, I would in all likelihood have made an order that the applicants pay the Minister’s costs.

The Minister’s evidence

18    In support of his interlocutory application, the Minister filed an affidavit affirmed on 23 February 2023 by Hongyi Gao. Mr Gao is a solicitor in the employ of HWL Ebsworth, the solicitors on the record for the Minister. Mr Gao relevantly deposed that:

(1)    to the best of his knowledge, he had never received any correspondence directly from the email addresses which he understood belong to the applicants, had never spoken to either of them by telephone, and had never received any letters from them;

(2)    all correspondence he had received in connection with the proceeding was sent from an email address which he understood belonged to Mr Kitoko (Mr Kitoko’s email address);

(3)    a review of the Ebsworth files did not reveal any email or letter from the applicants, or any file note of any conversation between the applicants and another employee of the firm; and

(4)    his understanding, based on the file review, was that the only emails relating to this matter on behalf of the applicants were sent from Mr Kitoko’s email address.

19    All the correspondence received by the firm from Mr Kitoko’s email address was annexed to Mr Gao’s affidavit. That correspondence largely consists of emails dealing with administrative matters sent by Mr Kitoko to Mr Gao and the Court. The emails typically conclude with a signature block which contain Mr Kitoko’s name and contact details. The correspondence includes emails in which Mr Kitoko referred to the draft grounds of appeal for the purpose of obtaining an expedited hearing, and in which he provided Mr Gao with a list of legislation and authorities to which he intended to refer the Court.

20    In one email, Mr Kitoko refers to himself as “the Applicants’ family relative”, in another as the “Exempt Person for the Applicants”. It is unclear what he meant, but it is tolerably clear that Mr Kitoko considered himself to be acting in some capacity on behalf of the applicants.

21    Mr Gao deposed that, having reviewed Ebsworth’s financial records in relation to this matter, the Minister’s total costs at the time both judgments were delivered were $18,133.44 (exclusive of GST) of which $4,242.44 were counsel’s fees and $13,891 were professional fees. He considered it likely that on taxation he would recover all counsel’s fees and 75% of the professional fees and therefore estimated that the Minister’s costs on a party and party basis at the time judgment was delivered were $14,660.69. Mr Gao deposed that an additional $3,684.68 (exclusive of GST) was incurred by the Minister in the preparation of the interlocutory application for the costs order against Mr Kitoko of which $550 were filing fees, $1,166.68 were counsel’s fees, and $1,968 were professional fees. He estimated that on a party and party basis those costs would amount to $3,192.68. The total of those two sums ($14,660.69 and $3,192.68) is $17,853.37, which is the amount of the lump sum the Minister seeks to recover.

22    As I indicated above, Mr Kitoko did not file any evidence to contradict Mr Gao’s account of his involvement in the proceeding in this Court or challenge the assessment of costs.

Did Mr Kitoko “encourage” the applicants to commence or continue their application?

23    The Minister submitted that Mr Kitoko was the “driving force behind the litigation” who had “encouraged the commencement and continuation of the proceedings”.

24    At [34]–[38] of the costs appeal judgment I discussed the meaning of the word “encourage” in s 486E(1) and I adopt for present purposes what I said there. It is sufficient to note that I concluded that the meaning includes “to inspire with courage, spirit, or confidence” and “to stimulate by assistance”. On the face of the material before the Court, that is the kind of encouragement Mr Kitoko provided the applicants both in the judicial review proceeding in the court below and in the applicants’ application in this Court.

25    Mr Kitoko’s conduct of the litigation in this Court is not materially different from his conduct of the judicial review application in the court below. In the costs appeal judgment I observed (at [44]) that his conduct of the judicial review application was relevantly indistinguishable from the facts in SZFDZ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 482. In that case, a third party to the proceeding assisted the applicant by drafting documents which were filed in the proceeding and appeared on the applicant’s behalf at the hearing. Similarly here, Mr Kitoko prepared all the documents which were filed in this proceeding and, although he was refused leave to appear at the hearing of the applicants’ substantive application, he did appear on their application for expedition and he sought to persuade the Court of the merits of their substantive application to support his own application. As the Minister submitted, the evidence in Mr Gao’s affidavit demonstrates that he was actively involved in the running of the applicants’ case.

26    As I said of the judicial review application (at [45] of the costs appeal judgment), even if Mr Kitoko did not assure the applicants that their application had reasonable prospects of success, his actions are likely to have encouraged them to think that it did. In this way, as he did in the court below, Mr Kitoko encouraged the applicants to bring and continue the litigation.

Did the applicants’ application have reasonable prospects of success?

27    For the reasons I gave at [48]–[79] and as I concluded at [80] of the principal judgment, none of the draft grounds of appeal advanced by the applicants was reasonably arguable and it would therefore have been futile to grant them an extension of time to appeal. In other words, I determined that their application did not have reasonable prospects of success.

Did Mr Kitoko give proper consideration to the prospects of success of the applicants’ application?

28    As Mr Kitoko offered no evidence on the Minister’s application, there is no evidence from him about what consideration, if any, he gave to the applicants’ prospects of success.

29    In SZFDZ at [25] Moore J explained that the use of the adjective “proper” “invites consideration of whether, in the circumstances, there was a balanced and thoughtful assessment of the prospects of success, such assessment being directed to whether, objectively, the litigant had prospects of success”.

30    On the face of the material before the Court, I conclude that no balanced and thoughtful assessment could have been made of the applicants’ prospects of success because, if it had been, the draft grounds of appeal would not have been advanced. Indeed, having regard to the insuperable barriers to the success of the judicial review application, discussed in the principal judgment, it seems to me that any application for leave to appeal was bound to fail.

31    Accordingly, I conclude that Mr Kitoko did not give proper consideration to the prospects of success of the applicants’ application.

Was Mr Kitoko given a reasonable opportunity to argue against the making of the order?

32    Section 486G provides that a court must not make an order against a person under s 486F unless that person has been given a given reasonable opportunity to argue why the order should not be made.

33    By the orders I made in this matter when delivering the principal judgment on 9 February 2023, Mr Kitoko was given such an opportunity. It was a matter for him as to whether he took advantage of the opportunity. Nearly two weeks have passed since his evidence and submissions were due to be filed and Mr Kitoko has not filed a response or sought an extension of time to do so.

34    I am satisfied that Mr Kitoko has been given a reasonable opportunity to argue why the order under s 486F should not be made.

Conclusion

35    The Court has the power under s 486F to order that Mr Kitoko pay the Minister’s costs of this proceeding. The only remaining question is whether the power should be exercised in the Court’s discretion. If it is not, the applicants (as the losing parties) would have to pay the costs.

36    There was no evidence to suggest that either of the applicants had any role in the preparation of the documents filed on their behalf or any appreciation of the prospects of their application’s success. It was apparent that they entrusted Mr Kitoko to look after their interests. They placed themselves completely in his hands.

37    I do not doubt that Mr Kitoko was well-intentioned. I accept that he was in all likelihood motivated to assist the applicants because of their limited English skills, his position in the Sydney Congolese community and his familial ties to them (he is apparently the father of one of Ms Vela’s children). But Mr Kitoko ought to have realised that mounting and prosecuting an appeal was beyond his ability and advised them accordingly. Instead of helping them, he unnecessarily exposed them to an inevitable loss and the accompanying disappointment. In these circumstances, it is not only consistent with the legislative scheme but it is also fair and just that he, rather than the applicants, should pay the Minister’s costs.

Orders

38    Rule 40.02(b) of the Federal Court Rules 2011 (Cth) (Rules) provides that a party or person who is entitled to costs may apply to the Court for an order that costs awarded in their favour be awarded in a lump sum instead of, or in addition to, any taxed costs. The Court’s power to make such an order derives from a number of the general powers conferred by Div 1.3 of the Rules, such as rr 1.32, 1.40 and 1.41.

39    In the event that an order under s 486F was made, the Minister sought costs against Mr Kitoko in a lump sum of $17,853.37.

40    Section 37M(3) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) relevantly provides that the civil procedure provisions of the FCA Act and Rules must be interpreted and applied, and any power conferred by them exercised, in the way that best promotes their overarching purpose. That purpose is set out in s 37M(1). It is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

41    Section 37M(2) provides that the overarching purpose includes the following objectives:

(a)    the just determination of all proceedings before the Court;

(b)    the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c)    the efficient disposal of the Court’s overall caseload;

(d)    the disposal of all proceedings in a timely manner;

(e)    the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

42    The taxation process is a laborious and costly one. It is consistent with the overarching purpose and in everyone’s interests that this question be resolved expeditiously and with the minimum of expense. Without doubt, the best way to achieve that is by the making of a lump sum costs order.

43    The amount the Minister sought reflects what Mr Gao estimated to be the Minister’s costs assessed on a party and party basis. Annexed to Mr Gao’s affidavit is a copy of all counsel’s invoices but there is no breakdown of the solicitors’ fees. This omission troubled me at first and, for that reason, I contemplated directing the Registrar to determine the amount of the costs. But having regard to the amount claimed, the work the solicitors have had to undertake in this matter and, above all, the absence of any challenge to Mr Gao’s evidence or opposition to the application, I am content to make the order sought, rounding off the figure claimed to the nearest dollar. To do otherwise would be contrary to the overarching purpose.

Associate:

Dated:    21 March 2023